The Constitution names the president commander in chief, but gives Congress the power to declare war. Since the Constitution's ratification, United States forces have engaged in over one hundred separate conflicts, but war was declared in only five of them (the last time being WWII).
Every time there is a new conflict without a war declaration, critics on both the left and right pen op-eds decrying its illegality. These complaints vary from the tedious to the silly. Does anyone think U.S. forces can't fire a weapon without a war declaration? What if Congress is in recess and there are enemy troops pouring across the border? Must a presidential order to return fire be ignored until Congress convenes? Of course not. Clearly, the President can fight a conflict without Congress. Furthermore, the Constitution does not discuss just war theory or make distinctions for aggressive wars fought on foreign soil. If we accept that the president has some ability to fight without congressional authorization, it must include an ability to wage war beyond immediate self-defense. Where does this presidential power to wage war end? Are there limits?
In 1973, as a response to these issues, and over a presidential veto, Congress passed the War Powers Act. It stated that the president could order American forces into combat, but must inform Congress within 48 hours. The president then has 60 days to receive either a declaration of war or an authorization to use force. If he doesn't receive Congressional authorization, he has an additional 30-day window to withdraw American troops.
Every sitting president has viewed the limits placed on him by the War Powers Act to be unconstitutional, but all have abided by it. The closest a toe came to crossing the line was in the 1999 Kosovo War when President Clinton ordered the bombing of Serbia without Congressional authorization (though Congress voted to fund it, which the White House argued was enough). Either way, the campaign lasted only 78 days, so the act was not violated. Every three-month conflict since 1973 has had Congressional approval.
That record might be coming to an end. It is now 61 days since President Obama informed Congress of the Libyan campaign. Unless he ends the fighting by the 90th day, he will violate the statute. What was his Administration's reason for not seeking authorization? Yesterday, the President sent a letter to Congress without offering one. In this update, he said the U.S. role is "limited", but "crucial", yet there is no such exception in the War Powers Act.
The Supreme Court has never ruled on the Act's constitutionality, leaving it a debatable question. But, from a public policy standpoint, it appears to have a number of benefits aside from the check of preventing the executive branch from waging wars indefinitely. It gives conflicts added legitimacy if they have Congressional approval, which can be a morale boost for the troops. Congressional votes put on the record the reasons and objectives of a war. Even if a war resolution in a limited conflict is often symbolic, the Act offers discussion and debate on the occasion when the stakes are high and a war is unpopular.
If there are principled objections to the War Powers Act, the Obama Administration hasn't uttered any. It's possible that there are hypothetical scenarios where following the Act might not be wise. But, is this one of them? I haven't heard one decent reason why the Act should be ignored regarding Libya.
If one argued that Congress can authorize the Libyan conflict without White House leadership - that would really turn the Act into a symbolic tool where Congresses (post facto) ratify the wars of presidents indifferent to their opinion. The complaint here shouldn't be that Congress didn't take the lead in providing authorization for Libya. It should be that they rolled over to the White House's contempt. Why aren't any of them complaining about this?
For almost four decades, American presidents have followed the Act. Now, it appears to be abandoned for no compelling reason whatsoever.
Let's hope we don't miss it once it's gone.
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